Efforts are underway across the country to use the 14th Amendment to keep Donald Trump off the 2024 ballot. Lawsuits have been filed in Colorado, New Hampshire, Minnesota and California; California lawmakers have asked the attorney general for a court ruling on the issue.

Under Section 3 of the 14th Amendment, anyone who takes an oath in support of the Constitution and then engages in insurrection against the United States is prohibited from holding federal office. Those pushing for the lawsuits argue that the section disqualifies Trump from running for president because of his efforts to overturn the 2020 election.

Eliminating one of the leading presidential candidates from the election is a momentous possibility that raises many questions. Some are relatively easy to answer; others require a deeper look at the history of the country and the amendment in question.

Let’s start with some simple ones. Opponents of disqualification argue that Section 3 cannot be enforced without a criminal conviction or a federal statute enforcing it. They have even argued that the president is not covered because he is not an officer of the United States.

In my opinion, these objections are not substantive. No other constitutional qualifications for the presidency, such as being at least 35 years old and a natural-born citizen, require a court ruling or statute to take effect. No other part of the 14th Amendment requires enforcement legislation. And anyone who holds the office of President is quite clearly an officer of the United States.

How to enforce Section 3, and by whom, is a slightly more difficult question, but the answer is already emerging. Someone will get a ruling from the court that Trump is or is not qualified to be president, the losing party will appeal and the case will go to the Supreme Court. The judges will give us an answer that applies to the entire country.

But what should that answer be?

To this question,

it is useful to think about the history of the provision.

Section 3, like the rest of the 14th Amendment and two other amendments, is a product of Reconstruction, the post-Civil War period in which Congress attempted to set the nation on a new course of inclusivity, equality, and democracy. The 13th Amendment abolished slavery, the 14th made formerly enslaved people citizens and gave them protection from state discrimination, and the 15th granted the right to vote regardless of race.

Section 3 is a provision to protect democracy. It excludes those who have proven themselves enemies of democracy by violating their oath to support the Constitution.

In 1868, the year the 14th was passed, that meant people siding with the Confederacy in the Civil War. But Section 3 is not limited to the Confederates. The question is how we can apply this today.

Conservative constitutional originalists William Baude and Michael Stokes Paulsen have argued that the framers of the 14th Amendment had a broad understanding of what counts as insurrection and what counts as participating in it. To remain true to the original understanding of the text, they say, we must ban Trump from office. Prominent historians such as Mark Graber and Gerard Magliocca agree.

But others argue that excluding a leading candidate from the presidential election would be undemocratic. As bad as January 6 was, they say, it was nothing like the Civil War, and Trump’s supporters won’t take it well if he’s banned from participating again. The answer, they argue, is to defeat Trump at the ballot box.

History, both recent and not so recent, also offers some insight here.

It is certainly true that Trump’s supporters will react badly if he is not allowed to run. But we found ourselves in this situation because of the way Trump and his supporters responded to losing an election in which he could run. Beating him at the ballot box is a less convincing recipe if your opponent won’t accept defeat.

It is also true that January 6, 2021 was very different from the Civil War. The scale was certainly different: three-quarters of a million Americans died during the Civil War, a massacre unsurpassed in our history.

But it was also different in purpose and rationale. The secessionists of the 19th century wanted to break away from the United States and establish their own country. Confederate leader Jefferson Davis was their president, they declared, not Abraham Lincoln.

The January 6 insurrectionists, on the other hand, wanted to keep Trump as president of the United States. They did not try to secede from the land; they tried to take over.

Stopping the lawfully elected president from taking office, keeping another president in place through violence and intimidation that would constitute insurrection by any standard. And the historical moment it evokes is not so much the Civil War as Reconstruction. That is the period that shows what happens when the enemies of democracy take power.

After the 14th and 15th Amendments gave citizenship and voting rights to the formerly enslaved, multiracial democracies emerged in the South as black and white Republicans came together to form electoral majorities. But their opponents did not want to accept the election results.

In 1876, close, contested elections took place at both the national and state levels. The election was marred by fraud and violence on the part of white supremacist paramilitary groups such as the Red Shirts, in some ways precursors to the Proud Boys and the Oath Keepers.

In South Carolina, former Confederate general Wade Hampton ran for governor against Republican candidate Daniel Chamberlain. Both sides claimed victory, although Hampton’s claim relied on reports from counties showing that more votes were cast for him than their total registration.

For months, South Carolina had two governments, each claiming to be legitimate. But Republicans needed federal troops to keep the Red Shirts at bay, and when they became president

Rutherford B.

Hayes ordered the troops to withdraw, Chamberlain fled the state and Hampton took over.

But wasn’t Hampton barred from office by Section 3? Yes, but he became eligible to serve in 1872, when Congress passed a general amnesty that lifted the ban on most former Confederates. So he provides a useful case study of what happens when an enemy of democracy gets the chance to become CEO.

The results are not measurable. Under Hampton, the Democrats and the Red Shirts restructured the political process to ensure that they would not lose any more elections.

In 1876, South Carolina had 90,000 black registered voters. In 1900 there were fewer than 3,000. As of 1940, black voter registration in the South was 3%. A meaningful improvement did not come until the federal Voting Rights Act of 1965.

Hampton, the Confederate general, served only one more term as governor and resigned in 1879 to become a U.S. senator. But his party held the South Carolina statehouse, often unopposed, until 1975.

What kind of government do we have? a woman reportedly asked Benjamin Franklin as he left the Constitutional Convention. A republic, he famously replied. If you can keep it. Surrender your republic to the enemies of democracy, and it may take a hundred years to get it back.

Kermit Roosevelt is a professor at the University of Pennsylvania Carey Law School and author of

The Nation That Never Was: Reconstructing America’s Story

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